Feds Can’t Duck|Pesticides Lawsuit

SAN FRANCISCO (CN) – A federal judge Monday refused to dismiss a lawsuit accusing the Department of the Interior of illegally delaying consultations on the effects of pesticides on endangered species in the California Bay Delta. The Center for Biological Diversity sued the Department of the Interior in February, claiming Fish and Wildlife Service violated the Endangered Species and Administrative Procedure Acts by failing to complete interagency consultation on the Delta smelt and Alameda whipsnake. The pesticides at issue are Atrazine, alachlor and 2,4-D. In 2010, the Center and CropLife America – a trade association representing pesticide manufacturers – settled a similar 2007 lawsuit, in which the Center sued the Environmental Protection Agency on the same charges involving the same three pesticides. The EPA promised in the settlement that it would “make effects determinations and initiate consultation, as appropriate” with Fish and Wildlife on the effects of 75 pesticides on 11 endangered and threatened species in the Bay Area. It also established a schedule for compliance and provided interim injunctive relief, imposing interim restrictions on the pesticides. The federal defendants sought dismissal of the new case, claiming the settlement agreement barred the Center’s claims here. They claimed the agreement barred the Endangered Species Act claim because it prohibits the Center from bringing “any court proceeding that concerns an alleged violation of Section 7 of the ESA.” Section 7 of the Act, “interagency cooperation,” provides that federal agencies ensure their actions do not jeopardize the existence of any endangered species. U.S. District Judge Joseph Spero on Monday disagreed, finding that the settlement agreement prohibits claims based only on “alleged substantive violations of Section 7,” rather than issuing a general waiver on all Section 7 claims. If the agreement were construed as the defendants proposed, the Center “would have no remedy if FWS simply decided not to engage in consultations,” Spero wrote. He also rejected the government’s argument that the Center’s Administrative Procedure Act fell outside of Section 7’s zone of interest. “Center for Biological Diversity is not seeking to challenge a timeline negotiated by FWS and any license applicants – it is simply seeking to enforce a deadline that applies generally to consultations between EPA and FWS,” Spero wrote. He found CropLife’s argument that the Center lacked standing “unpersuasive.” He ordered the parties to meet and confer and file a proposed schedule for the next phase by Sept. 7. Neither side could be reached for comment Tuesday.